H-2B

On December 10, 2010, two Filipino-Americans who operated a labor contracting service were sentenced for criminal violations under the federal H-2B guest worker program. Sophia Manuel and Alfonso Baldonado, Jr., owners of Quality Staffing Services Corporation, had pleaded guilty to charges involving forced labor of 39 Filipino nationals.

Manuel was sentenced to 78 months in prison and Baldonado to 51 months. Manuel was also sentenced for false statements made on an application for a labor certification and visas under the H-2B visa program.

Their staffing firm enticed workers to come to the United States and for a fee, promised them housing, job placement and transportation. However, soon after their victims arrived in the U.S. the defendants exploited them. Since the workers had paid recruitment fees up-front back home, many of them incurred debt and thus faced serious economic harm and possible incarceration if they returned to the Philippines.

The workers shared an overcrowded three-bedroom house and without adequate food and water, while they were made to work at swanky country clubs and hotels. Their passports were confiscated and they were threatened with arrest and deportation when they complained and were ordered not to leave the premises without permission and an escort.

This case illustrates the egregious violations that have been committed under the H-2B program. In a recent investigative study, the Government Accountability Office (GAO) exposed the abuse and fraud perpetrated by unscrupulous employers and recruiters not unlike those committed by Manuel and Baldonado.

GAO reviewed ten civil and criminal cases involving visa fraud or exploitation under the H-2B visa program that have either been closed or settled. The practices discovered by GAO involved failure to pay the workers the prevailing hourly wage or overtime, charging them exorbitant fees, and submission of fraudulent documentation to the government.

In six of the ten cases reviewed, the employers did not pay their H-2B employees the established hourly wage and/or overtime pay. H-2B workers are covered by the Fair Labor Standards Act which mandates the payment of at least the minimum wage and overtime pay on non-exempt employees.

Six cases showed employers charging H-2B workers excessive fees. These fees comprised of visa processing fees above actual costs, rent in overcrowded and grossly overpriced apartments, and transportation charges subject to “late fees”. As a result, many workers were left in greater debt than when they just arrived.

The study also uncovers the fraud that recruiters and employers committed so they could exploit their H-2B workers or hire more employees than needed. In particular, they misclassified employee duties on labor certification applications in order to pay lower prevailing wages, used shell companies to file fraudulent applications for unneeded employees, and then leased these additional employees to business that were not on the visa petitions.

Some of the deplorable acts include those committed by a hotel in South Dakota that charged nine employees $1,200 each in visa processing fees when that was the cost for all nine workers; charging a monthly rent of $1,050 for an apartment that normally rented for only $375; isolating the employees from the community, confiscating their passports, and threatening them with physical abuse and deportation in a “box” if they disobeyed orders.

Another employer, a construction company in Louisiana, conspired with a foreign contract labor firm to lure 87 Indian nationals to the U.S. and charged them $20,000 each for the H-2B visa, but never employing them. In another case, a New York-based carnival operator housed its H-2B workers in overcrowded and cockroach- and bedbug-infested trailers with unsanitary bathrooms.

An H-2B worker is defined as a foreign nonimmigrant worker employed to perform temporary nonagricultural labor or services. The employer is required to show that the need for the workers is temporary and that there are no available U.S. workers capable of performing such labor or service.